Court of Appeal for Ontario

Date: 20210120 Docket: C66990 & C66991

Judges: MacPherson, Tulloch and Lauwers JJ.A.

C66990

BETWEEN

Her Majesty the Queen Respondent

and

David Brown Appellant

C66991

AND BETWEEN

Her Majesty the Queen Respondent

and

Daimian Johnson Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellants Diana Lumba, for the respondent

Heard: December 18, 2020 by video conference

On appeal from the sentences imposed by Justice Michael K. McKelvey of the Superior Court of Justice on May 2, 2019.

Reasons for Decision

[1] The appellant David Brown pleaded guilty to one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. The appellant Daimian Johnson pleaded guilty to three counts of trafficking in cocaine contrary to s. 5(1) of the CDSA.

[2] Brown and Johnson submitted agreed statements of facts for the purposes of sentencing.

[3] The agreed statements of facts stated that Brown obtained two kilograms of cocaine from Johnson on June 6, 2016. Brown was arrested on June 28, 2016 and found in possession of one kilogram of cocaine pressed into a brick. Police executed a search warrant at Brown’s residence the following day and found cash, cellular phones, a money counter, drug paraphernalia and a debt list.

[4] Johnson sold large volumes of cocaine in May 2016, including one kilogram to a client on May 17, 2016. On June 6, 2016, Johnson sold Brown two kilograms of cocaine. On June 13, 2016, Johnson sold one kilogram of cocaine to a different client. Like Brown, Johnson was arrested on June 28, 2016. Police discovered nearly $75,000 in cash and three cellular phones in his car.

[5] Brown was sentenced to four years and seven months’ incarceration. Johnson was sentenced to six years and five months’ incarceration. Both men appeal their sentences.

[6] The basis of the two appeals is the same – the appellants assert that the sentencing judge took no or insufficient account of several important mitigating factors. If the sentencing judge had taken proper account of these mitigating factors, the sentences should have been lower.

[7] Before considering the specific mitigating factors raised by the appellants, we observe that the sentencing judge identified numerous mitigating factors. Both appellants pleaded guilty. Both appellants were arrested twice and had two bail hearings. Both appellants were subject to restrictive bail conditions. Both appellants chose to speak at the sentence hearing. They expressed genuine remorse for their engagement in criminal commercial drug activity and the sentencing judge believed them, saying “Mr. Brown appeared genuinely remorseful about his conduct” and “As with Mr. Brown, I had no reason to doubt Mr. Johnson’s sincerity.”

[8] Against this backdrop, we turn to the legal issues raised by the appellants. Importantly, we do so under the umbrella of the deference that an appellate court must accord to the decisions of sentencing judges: R. v. Lacasse, 2015 SCC 64, at paras. 39-44.

[9] The appellants submit that the sentencing judge’s starting point for sentences involving possession for the purpose of trafficking – “five to eight years” – was too high. We do not accept this submission. This range is supported by case law: R. v. Bryan, 2011 ONCA 273.

[10] Moreover, the Crown in this case proposed a seven year sentence for Johnson and a five year sentence for Brown. And the sentencing judge recorded: “The defence accepts that the sentences proposed by the Crown are reasonable generally.”

[11] The real issue on this appeal is the same as that recorded by the sentencing judge, namely “the proposed sentences do not adequately reflect all of the mitigating circumstances which need to be taken into account.” In this domain, the appellants make two joint submissions and Johnson makes a separate submission.

[12] First, the appellants contend that the sentencing judge erred by giving no credit for the fact that the appellants had been arrested twice (the second time when new charges were laid) and went through a second bail hearing.

[13] We do not accept this submission. The sentencing judge expressly considered this issue under the heading “Mitigating Factors – Two Separate Arrests”. He said:

I agree with the defence that having to go through a second arrest and bail review would have caused the defendants some additional anxiety and frustration. I disagree, however, with the suggestion that their sentences should be further discounted by six months on this account. In my view, the proposed sentences adequately reflect this mitigating factor. [Emphasis added.]

[14] We can see no error in this analysis. The sentencing judge identified and considered the issue and, importantly, employed it as a factor supporting the sentences proposed by the Crown, which “already reflect[ed] some very significant mitigating factors”.

[15] Second, the appellants submit that the sentencing judge failed to give sufficient credit for the stringent bail conditions that both appellants faced after their arrests and for the fact that the appellants, through counsel, turned in three firearms to the police.

[16] We are not persuaded by this submission. The sentencing judge explicitly stated that he was going to give credit for these mitigating factors “to reduce the sentences proposed for each of the defendants below those which have been proposed” by the Crown. At the end of his reasons, he fulfilled this pledge by reducing Johnson’s sentence by seven months, and Brown’s sentence by five months, below what the Crown had sought. We cannot quarrel with the sentencing judge’s decision to give credit for these two factors or with the quantum of the credit he chose.

[17] Third, the appellant Johnson contends that the amount of credit – two months – the sentencing judge gave him for his testimony at the drug trial of one of his customers was insufficient.

[18] We do not accept this submission. At the sentence hearing, the Crown took the position that no credit should be given because Johnson’s testimony was not helpful to the Crown and the charges against the customer were dismissed. The sentencing charge carefully reviewed Johnson’s role in his customer’s trial and the relevant case authorities. We cannot say that his allocation of two months’ credit for Johnson’s testimony was unreasonable, or even parsimonious.

[19] The appeals are dismissed.

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”